2012 01 Children

Wednesday 1 February 2012

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Muse and Ors (By their litigation friend Fadumo Nur Ali) v Entry Clearance Officer [2012] EWCA Civ 10(Toulson, Etherton, Kitchin LJs): The appellants are five Somali children who live in Ethiopia. They appeal against repeated refusals of their applications for leave to enter the UK in circumstances where the sponsor mother lived in the UK and the children lived in Ethiopia. The Secretary of State for the Home Department contended that if the mother wanted to be united with her children she could relocate to Ethiopia instead. The Court of Appeal held that the question whether it would be reasonable to expect a person to relocate was not as simple as it sounded, especially where the facts produced an obvious negative or affirmative answer. The harshness of such an expectation was a matter of degree which formed part of an overall evaluation of whether refusal of entry was disproportionate. Such cases required particularly careful evaluation of the particular facts. In finding that the sponsor mother could gain entry to Ethiopia, the Immigration Judge had failed to consider the question of her financial support. He also failed to give reasons as to why refusal of leave was proportionate. Click here for judgment.

Children’s Rights Alliance for England v Secretary of State for Justice and (1) G4S Care & Justice Services (UK) Ltd and (2) Serco PLC (Interested Parties) [2012] EWHC 8(Admin) (Foskett J): The claimant charity sought judicial review of the refusal of the Secretary of State for Justice to provide details of former child detainees who had been subjected to unlawful restrain procedures whilst detained in secure training centres run by the interested parties. In the course of inquiries and investigations, it came to light that restraint for good order and discipline was used in STCs even though such practices were explicitly forbidden in the Secure Training Centre Rules. The claimant argued that the Secretary of State had a positive obligation at common law or under the European Convention on Human Rights to provide details of those children formerly detained in STCs who had been unknowingly subjected to unlawful restraint procedures. The application was dismissed. Click here for judgment.

Sedgemoor DC v Hughes (HHJ Anthony Thornton Q.C.): In the context of a Gypsy planning injunction case, the Court was asked to consider the implications of the Supreme Court's judgment in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (click here for judgment) as to the best interests and welfare of the child in the context of eviction of families with children from sites. The Court considered that the question to ask was whether it would be reasonable to evict such a family. Consideration needed to be paid by the local authority to section 11 of the Children Act 2004. The Court must satisfy itself that the public body has acted lawfully in bringing proceedings and must consider whether the relief sought, i.e. an injunction, would have an unaccpetable impact on the best interests of the children. Please see the Practice Note section of the Garden Social website for a Note of the Judgment and a Case Note produced by Marc Willers (Garden Court Chambers), counsel for the Defendant in this case.

n.b. Practitioners may also consider the way the Court dealt with the best interests of the child and the relevance of Children ACt 2004 section 11 in the context of the Dale Farm litigation (Patrick Egan v Basildon Borough Council [2011] EWHC 2416 (QBD)) Click here for judgment.

R (MWA) v Secretary of State for the Home Department and Birmingham City Council [2011] EWHC 3488 (Admin)(Beatson J): This is another age dispute judicial review trial. The claimant, an Afghan asylum-seeking claimed to be 12 years old when he entered the UK in June 2009. He was subsequently assessed to be at least 18 by the local authority. In June 2010, he obtained a Dr. Birch paediatrician report which concluded he was about 13 years and 11 months. The SSHD had refused the claimant’s asylum claim. On appeal, an immigraton judge determined he was 13. The SSHD withdrew her decision and the local authority also reviewed its assessment of the claimant’s age. The re-assessment maintained a conclusion that the claimant was over 18. The SSHD therefore contended she could depart from the immigration judge’s findings. The claimant appealed. Dr. Birch produced a further report maintaining her conclusion that the claimant is a child. The immigration tribunal considered the claimant’s second appeal and determined that it should not depart from the original judge’s determination. This left an unsatisfactory situation whereby the local authority contended that it was not bound by the immigration judge’s determination. The SSHD however accepted the claimant’s age. Yet another Dr. Birch report was produced and the conclusion was that in November 2011, the claimant was 13-15 years old. The court held a trial of the claimant’s age and concluded that (i) the claimant was not credible (ii) Dr. Birch’s conclusion was not reliable because her methodology had been criticised in other cases. See A v Croydon LBC [2009] EWHC 939 (Admin) (Collins J); R v Croydon LBC [2011] EWHC 1473 (Admin) (Kenneth Parker J); R (N) v Barnet LBC [2011] EWHC 2019 (Admin) per HHJ David Pearl. The Court determined that the claimant was at least by the second age assessment produced by Birmingham at least 18 years old and therefore was 19 years old at the time of the hearing in December 2011. Judgment was entered against the claimant. Click here for judgment. and the relevance of the Children Act 2004 and best interests of the child in that case. Click here for judgment.

n.b. Please do note that this case was decided on the basis of the judge imposing a burden of proof on the claimant to prove he is under 18 years old at the time he asserted that a duty was owed to him as a child. The position in law changed a few days before this judgment was handed down. See case of CJ v Cardiff CC [2011] EWCA Civ 1590 (click here for judgment). To that extent, caution should be exercised before relying on this aspect of the judgment. Given the significant negative credibility findings and the absence of other evidence other than discredited paediatric evidence, it is unclear on the face of the judgment whether applying the correct law on the burden of proof per CJ would have made any difference to the outcome of the case. This goes to illustrate the fact-sensitive nature of these cases and the need for caution in drawing any broad principles from these substantive fact-finding trials.

R (RP) v LB of Brent [2011] EWHC 3251 (Admin) (Stadlen J): The claim was brought by the parent of a disabled child to challenge the local authority’s decision to close a short breaks unit earlier than planned. The closure was so to enable the consolidation of the resources into one centre. Budget reductions led the local authority to close the unit earlier than planned and before the new centre was ready. The proposal was to provide for the needs of the unit’s users at the other existing facility. The challenge was originally brought on grounds of breach of the Equality Act 2010 section 149 (public sector duty). This ground was subsequently abandoned and substituted with a challenge described in the judgment as ‘irrationality / breach of s149 in failing to obtain information concerning alternative provision of short breaks care.’ The Court dismissed the application (post-permission) on the basis that: (i) the decision was not confined to a closure of the unit. The decision included a commitment to continue to provide alternative short breaks provision to the users pending the new centre being ready. There was a wide spectrum of means by which short break provision could be delivered under the Breaks for Carers of Disabled Children Regulations 2011 reg 4. (see judgment at §§256-257, 262-267, and 273). Although the local authority’s practice in assessing and meeting needs was relevant, the failure to assess before closure of the unit ought not to have ben the critical question in the case. The correct question the local authority had to ask itself was whether if the unit was prematurely closed, it would be likely to be able to meet the needs of the users by alternative means. It was not necessary for it to have been satisfied that the needs of all the unit's users could be met at the other facility: it had not considered that the needs of the users should be met specifically there. It had given careful consideration to the other facility's suitability and had had sufficient information to be reasonably satisfied that most of the users' needs could be met there. It is not always the case that the assessment is the only means by which sufficient information could be gained about whether the alternative provision could meet the users’ needs. On the particular facts of the case and the evidence filed by the local authority, the local authority did have sufficient information and could rationally determine whether the alternative provision could properly meet the needs of the users. Click here for judgment:

Other matters:

Landing in Dover (January 2012). The Children’s Commissioner’s report on the immgration procedures to which unaccompanied children arriving in Kent are subject between their first encounter with the authorities and the time they are placed in the care of Kent County Council Children’s social care services. Click here for the report.

n.b. Consider this report in conjunction with the case of R (AN and FA) v Secretary of State for the Home Department (2011) 27/7/2011 (extempore judgment) (Mitting J) which considered the legality of detaining children for the purposes of interviewing them for asylum on arrival in Dover. See further the August 2011 Case Update.

See also interesting article in the Observer about the journey that unaccompanied minors endure across Europe. Click here for article.

Comparative Study on Practices in the Field of Return of Minors: Final Report. (European Council on Refugees and Exiles and Save the Children for the European Commission) A study on legislation and practice in relation to the voluntary and forced return of children, both unaccompanied and within families, covering the 27 EU member states, as well as Iceland, Norway, Switzerland and Liechtenstein, and seven countries of return. Click here for report.

Guidelines in respect of children giving evidence in family proceeding. (Family Justice Council). Click here for the guidelines.

n.b. Although specific to family proceedings following the case of Re W [2010] UKSC 12 (click here for judgment), the guidelines could provide useful guidance on the issue of children giving evidence in other contexts.

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